Mr. X and the Department of Foreign Affairs and Trade (FOI Act 2014)

Whether the Department was justified in refusing access under sections 30 and 37 of the FOI Act to details, including names, dates and basis on which higher scale was awarded, of certain employees on a higher salary scale

29/12/2017

Background

On 18 January 2017 the applicant sought access to details of officers of a civil service grade who were on the higher salary scale. He sought four categories of information:- the total number of such officers employed by the Department; the total number on the higher scale; the name of each officer and the date of their appointment as such an officer as well as the date on which they were placed on the higher scale and the basis on which this was done . The Department granted the first two parts of the request by providing him with the number of such officers in the Department and the number currently on the higher scale. It refused access to a record containing the information in the second two parts on the basis that this was the personal information of those officers (section 37(1)). The applicant sought an internal review of that decision and on 21 March 2017 the Department upheld the original decision citing section 30(1)(b) (significant adverse effect on performance of its functions, including industrial relations and management of staff) in addition to the section 37(1) exemption. The applicant subsequently made an application for a review by this Office.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Department and the applicant as described above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter, and to the contents of the record at issue.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access under section 30(1)(b) and section 37(1) to a record containing:
1. The name of each officer on the higher scale and their date of appointment as such an officer.
2. The date on which they were placed on the higher scale and the basis on which this was (e.g. seniority, merit, was on the higher scale when transferred into the Department etc.).

Preliminary Matters

I wish to draw attention at the outset to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body concerned shows to the satisfaction of the Commissioner that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse access to the record sought was justified.
The FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

It might be helpful in this case to set out this Office's position on requests for information that might not be held in discrete records.
The FOI Act provides for a right of access to records held by FOI bodies (section 11). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, section 11 of the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. In this case, it appears that the Department held a record in the form of a table which collated information from personnel files and set out, along with some other details, the information sought by the applicant in his request. I will, therefore, proceed on the basis that the Department holds and has provided this Office with a copy of a record containing the information sought.

Analysis and Finding

The Department relied on sections 30(1)(b) and 37(1) of the FOI Act to refuse access to the requested information. As I believe that section 37 is the most relevant I will deal with that first.
Section 37 - Personal Information
Section 37 provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including:
(ii) information relating to the financial affairs of the individual
(iii) information relating to the employment or employment history of the individual and
(v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of the staff of an FOI body).

Section 2 also includes some exclusions to the definition of personal information. It states that the definition does not include:

(I) in a case where the individual holds or held -

(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,

(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- The Information Commissioner [2012] 1 ILRM 301, (the Rotunda Case) considered the definition of personal information and found that it is sufficient for information to be captured by any one of the fourteen specific categories of information for it to be personal information. Release of the information at issue in this case would involve the disclosure of the identities of a number of individuals together with information relating to their earnings and aspects of their employment and career path. It is clear that such information can be described as information relating to the employment and/or financial affairs of the individuals in question and is also information that is contained on the personnel record of a member of the staff of an FOI body. On its face, therefore, for the purposes of the FOI Act the information sought is personal information relating to the individuals concerned, unless any of the exclusions to the definition of personal information apply.

The exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public or civil servants of the right to privacy generally. Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and financial affairs.

The Department states that the record is a confidential record which "details service history of current [officer]s" and that "the content of the record is wholly drawn from officers' personnel files." It seems to me that this is precisely the type of information that is captured by the inclusion of information relating to the individual in a record falling within section 11(6)(a) - a personnel record of a member of the staff of an FOI body - in the definition of personal information. The applicant argues that he is not seeking the current salary point of any of the individuals concerned. However, it seems to me that it would be a simple matter to deduce the current salary point from the information requested. Further, the applicant goes on to suggest that the date of appointment of an officer is not personal as it would be commonly known within the Department. However, the Department says that "the salary scales for civil servants are publically available; the names of officers serving at [such] level are publically available; but the date an officer moved to any particular salary point is private and confidential to the officer concerned." I agree that this is information that would be contained on a personnel file. While general salary scales may be publicly available, the scale that a particular officer is on; the date of their appointment to a certain grade; the date they were placed on a certain scale and the basis for that appointment is all information relating to employment, financial affairs and held in personnel records.

General salary scales would be captured by the exclusion as they are considered the terms upon which an individual holds a position. In any case, these are published. In my view, the detailed information in the record at issue is not captured by the exceptions in the definition. I find that the exclusion to the definition of personal information does not apply to the requested information. It follows, therefore, that section 37(1) applies.

The effect of section 37(1) is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at sections 37(2) apply.

The Public Interest

Section 37(5) provides that access to the personal information of a third party may be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

It has not been argued that the release of the withheld information would be to the benefit of the third parties concerned, nor do I consider this to be the case. I therefore find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates. In this regard, it is important to note the comments of the Supreme Court in the Rotunda case mentioned earlier in this decision. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The Act recognises a strong public interest in enhancing the openness, transparency and accountability of public bodies in the performance of their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The applicant states that he believes that there may be some anomalies in the operation of the process within the Department for the placing of officers on the higher salary scale and that he may have been disadvantaged as a result of these anomalies. I have no remit to consider, or make findings on, the adequacy of any element of the relevant process. It would not be appropriate for me to direct the release of exempt information in the public interest, effectively to the world at large, on the basis of assertions that the process was flawed.

As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

The question is whether or not the applicant's private interest in the records outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I do not consider that the release of individual salary and career details would result in a significant further enhancement of transparency and accountability. On the other hand, I consider that release would involve a significant breach of the privacy rights of the individuals concerned. In my view, the applicant's private interest does not outweigh the public interest in protecting the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

As I have found that section 37 applies to the withheld record it is not necessary for me to go on to consider the potential application of section 30(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse parts of the applicant's request on the ground that the information sought is exempt under section 37(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.